Understanding the Distinction Between Wills and Living Wills
Estate planning encompasses various legal documents that guide the distribution of assets and medical care decisions upon an individual’s death or incapacitation. Among these documents, wills and living wills serve distinct purposes and play crucial roles in ensuring a person’s wishes are respected.
Key Facts
- Purpose:
- A will, also known as a last will and testament, is a legal document that specifies how a person’s assets and property should be distributed after their death.
- A living will, also known as an advance directive or healthcare directive, is a legal document that outlines a person’s medical wishes in the event they become terminally ill or permanently unconscious and cannot communicate their desires[2].
- Timing:
- A will becomes effective after the person’s death and is administered by an executor who carries out the distribution of assets according to the will’s provisions.
- A living will becomes effective when the person is unable to communicate their medical decisions due to serious illness or incapacity.
- Content:
- A will primarily addresses the distribution of assets, including property, savings, and investments, and may also name guardians for minor children.
- A living will focuses on medical care decisions, such as the use of life support, feeding tubes, and other life-sustaining treatments, and may be accompanied by a healthcare power of attorney.
- Administration:
- A will goes through the probate process, which involves filing the will with the court, inventorying assets, paying debts, and distributing remaining assets to beneficiaries.
- A living will does not go through probate and is typically followed by healthcare professionals and family members according to the person’s stated wishes.
Purpose
A will, also referred to as a last will and testament, is a legal document that details how a person’s assets and property should be distributed after their passing [1]. It specifies the beneficiaries who will inherit the assets and outlines the terms of distribution.
A living will, on the other hand, is a legal document that outlines a person’s medical wishes in the event they become terminally ill or permanently unconscious and cannot communicate their desires [2]. It provides guidance to healthcare professionals and family members regarding the use of life support, feeding tubes, and other life-sustaining treatments.
Timing
A will becomes effective after the person’s death and is administered by an executor who carries out the distribution of assets according to the will’s provisions [1]. The probate process involves filing the will with the court, inventorying assets, paying debts, and distributing remaining assets to beneficiaries.
A living will becomes effective when the person is unable to communicate their medical decisions due to serious illness or incapacity [2]. It does not go through probate and is typically followed by healthcare professionals and family members according to the person’s stated wishes.
Content
The content of a will primarily addresses the distribution of assets, including property, savings, and investments [1]. It may also name guardians for minor children.
A living will focuses on medical care decisions, such as the use of life support, feeding tubes, and other life-sustaining treatments [2]. It may be accompanied by a healthcare power of attorney, which appoints a person to make medical decisions on the individual’s behalf if they are unable to do so themselves.
Administration
A will goes through the probate process, which can be time-consuming and involve legal fees [1]. The executor is responsible for carrying out the will’s provisions and ensuring that the assets are distributed according to the deceased person’s wishes.
A living will does not go through probate and is typically followed by healthcare professionals and family members according to the person’s stated wishes [2]. It provides clear guidance regarding the individual’s medical preferences and helps to ensure their wishes are respected.
Conclusion
Wills and living wills are essential estate planning documents that serve distinct purposes. Wills ensure the proper distribution of assets after death, while living wills provide guidance for medical care decisions in the event of incapacitation. By understanding the differences between these documents, individuals can make informed decisions to protect their assets and ensure their medical wishes are respected.
References
- Estate Planning: Living Trust vs. Will vs. Living Will
- Living will vs. last will & testament
- What’s the Difference Between a Living Will vs Will?
FAQs
What is the purpose of a will?
A will is a legal document that outlines how a person’s assets and property should be distributed after their death. It specifies the beneficiaries who will inherit the assets and outlines the terms of distribution.
What is the purpose of a living will?
A living will is a legal document that outlines a person’s medical wishes in the event they become terminally ill or permanently unconscious and cannot communicate their desires. It provides guidance to healthcare professionals and family members regarding the use of life support, feeding tubes, and other life-sustaining treatments.
When does a will become effective?
A will becomes effective after the person’s death and is administered by an executor who carries out the distribution of assets according to the will’s provisions.
When does a living will become effective?
A living will becomes effective when the person is unable to communicate their medical decisions due to serious illness or incapacity. It does not go through probate and is typically followed by healthcare professionals and family members according to the person’s stated wishes.
What is the difference between probate and non-probate assets?
Probate assets are assets that pass through the probate process, which involves filing the will with the court, inventorying assets, paying debts, and distributing remaining assets to beneficiaries. Non-probate assets are assets that pass outside of probate, such as assets held in a trust or jointly with another person.
Can I change my will or living will after I have created it?
Yes, you can change your will or living will at any time as long as you are of sound mind and body. It is recommended to review and update your estate planning documents periodically to ensure they reflect your current wishes.
What happens if I die without a will?
If you die without a will, your assets will be distributed according to the laws of intestacy in your state. This may not reflect your wishes, and it could lead to disputes among your heirs.
Why is it important to have both a will and a living will?
Having both a will and a living will ensures that your wishes are respected both after your death and in the event of your incapacitation. A will ensures the proper distribution of your assets, while a living will provides guidance for medical care decisions when you are unable to communicate your wishes yourself.